(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY

SZ2548 of 2003

SZBZJ

Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT
The proceedings

1. This judgment relates to a decision of the Refugee Review Tribunal ("the Tribunal") made on 13 October 2003 and handed down on

5 November 2003. The Tribunal affirmed the decision of the delegate of the respondent (&qu;
ot;the delegate") not to grant the applicant a protection (Class XA) visa.

2. The applicant arrived in Australia on 6 September 2002. On

16 October 2002 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 18 October 2002 a delegate of the Minister refused to grant a protection visa.

The history

3. The applicant was born in Lebanon on 25 August 1950. He attended school in Lebanon from 1956 to 1971 and on completion of his education was employed by L M Ericsson (1971-1986). Since 1989 the applicant has been a self employed contractor in various positions in Lebanon and USA and gave his occupation on the visa application as "Self employed - General Contractor".

4. The applicant is married with two adult sons and his family reside in Lebanon. He states his religion as Christian and his ethnicity as Maronite.

5. In October 2002, the applicant claimed he signed a contract with a company known as Tajj to work as a subcontractor to supply water to villages in the Bekaa region of Lebanon. The applicant claimed the water pipes had to pass through an area known as Dar-El-Wasaa which was controlled by the Jafaar family.

6. The applicant claimed that whilst carrying out the work he met a local member of the Hezbollah, the Hezbollah being the predominant power in that area. He and the member came to an agreement that the Hezbollah would ensure the applicant's safety and the safety of his crew and contract within the area in return for donations to the Hezbollah. The applicant claimed however that the Jafaar family would not permit him to carry out his work in the area owned by the Jafaar family. The applicant sought the help of the Hezbollah member in return for information provided to the Hezbollah about drug plantations owned by the Jafaar family.

7. Following negotiations with Mr Jafaar, the applicant was able to control the project and visit the site on the proviso that only Jafaar labour and equipment were used. The applicant claimed the work took months to complete and during this time he gave information about the drug plantations to the Hezbollah.

8. The applicant claimed that after three months he heard that the plantations in Dar-El-Wasaa had been destroyed and a large quantity of drugs confiscated and Mr Jafaar and some of his gang were captured. The applicant also claimed that the Hezbollah member consequently told him that the Hezbollah had nothing to do with the drug bust and that only the Lebanese Army was involved.

9. At that time the applicant was working on another site and claimed that an associate of the Jafaar family came to the site causing trouble because he believed the applicant was connected to the drug bust. The applicant claimed he moved to another village to work but continued to be harassed and threatened that he would be killed. The applicant left and went into hiding because he feared he would be not be safe.

10. The applicant claimed that not all members of the Jafaar family/gang were arrested and they would harm him in revenge for their losses. The applicant also claimed he felt the authorities could not protect him because Lebanon is small and everyone had connections with police, army officials, secret services and political parties. The applicant said he was unable to seek the assistance of the authorities because he had no proof.

The Tribunal's decision and reasoning

11. The Tribunal received the applicant's application for review of the delegate's decision on 25 October 2002. On 3 June 2002 the Tribunal invited the applicant to give oral evidence and make further submissions and after two adjournments, the applicant attended a hearing on 9 October 2003.

12. The Tribunal had before it the Department's file, which included the protection visa application and the delegate's decision record.

13. The Tribunal accepted that the applicant is a citizen of Lebanon and accordingly, assessed his claims against Lebanon as his country of nationality.

14. The Tribunal noted the applicant's claims that he was at risk of being killed by the Hezbollah if he returned to Lebanon because of a perception that he exposed drug activities of the Jafaar family to the Lebanese authorities and as a consequence some members of the Jafaar family were arrested, killed and their drugs confiscated.

15. The Tribunal found the applicant to be generally credible but considered that following the decision of the delegate he had exaggerated the involvement of the Hezbollah in order to enhance his claims. The Tribunal formed this view because the applicant's original claims state his claimed persecutors were members of the Jafaar clan. This information was supported by the statements of members of the applicant's family dated January 2002 which pre-date the delegate's decision in October 2002. The Tribunal noted that it was only after the delegate's decision that the applicant claimed Hezbollah involvement in his persecution. The Tribunal preferred the original version of the applicant's claims and accepted that if the applicant were to return to Lebanon he could be seriously harmed from either one particular member of the Hezbollah or members of the Jafaar family/gang. The Tribunal found that the harm faced by the applicant was sufficiently serious to constitute persecution.

16. The Tribunal noted that an application for refugee status must show that the persecution feared is for reasons enumerated in the Refugees Convention. Further, the Tribunal noted that s.91R(1)(a) of the Act stipulates that a Convention reason or reasons must constitute at least the essential and significant reason for the persecution. In considering the facts of the case, the Tribunal was of the view that the reason the applicant feared harm by either one particular member of the Hezbollah or members of the Jafaar family/gang was revenge for the belief that the applicant exposed the gang's criminal drug activities to the authorities leading to the death of some gang members and the loss of drugs.

17. The Tribunal noted that fear of revenge does not come within the scope of the Refugees Convention unless it can be shown that the revenge or retaliation is linked with race, religion or political opinion or other Convention reason. In the circumstances of this case, the Tribunal found the persecutors were not concerned with any personal attribute of the applicant, including race, religion or political opinion, other than the fact they believed the applicant responsible for exposing their criminal activities. The Tribunal claimed it was clear from the applicant's own evidence that the persecutors were concerned with extracting some form of retribution from him for this reason and for no other reason. Despite one of the persecutors being identified as a member of the Hezbollah, the Tribunal found there was no evidence that the applicant's political views or opinions were of any interest to his persecutors. On that basis, the Tribunal found the applicant's fear to have no connection with any of the Convention reasons.

18. The Tribunal found that the applicant did not have a well founded fear of persecution for the reasons of his race, religion, actual or imputed political opinion or membership of a particular social group or any other Convention reason should he be returned to Lebanon now or in the reasonably foreseeable future.

19. Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

20. On 5 November 2003 the Tribunal handed down its decision affirming the delegate's decision not to grant a protection visa.

The application for review of the Tribunal's decision

21. Counsel for the applicant sought and was granted leave to file an amended application and submissions before the Court on 28 September 2004.

22. The amended application contained the following grounds:

1. The second respondent committed jurisdictional error of law in that it failed to ask the correct question being,

Particulars
(a) The motive or motives that the Jafaar family and the Hezbollah may have attributed to the applicant for allegedly revealing their criminal activities to the Lebanese Army, and for which they sought revenge.

(b) Whether the Jafaar family or the Hezbollah or both may have considered the applicant's actions in revealing their criminal activities to the Lebanese Army to be a politically significant act.

2. The second respondent committed jurisdictional error by misconstruing the meaning of the term, "political opinion" in Article 1A(2) of the Refugees Convention.

Particulars
(a) The Tribunal construed the term, "political opinion", in terms of political parties, rather than as any matter in which government may legitimately become involved, as is intended by the Refugees Convention.

3. The second respondent committed jurisdictional error in that it failed to consider and address a claim made by the applicant, being that he would not be afforded protection by the Lebanese authorities because he was not pro Syrian.

The law

23. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002, held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

24. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

25. Mr L J Karp of Counsel appearing for the applicant filed written submissions in Court on the day of the hearing. It was submitted that whether the applicant's political opinion is of any interest to his persecutors depends on what is meant by the term, "political opinion". The applicant says that the Tribunal has fundamentally misunderstood the meaning and effect of this term in Article 1A(2) of the Refugees Convention.

26. It was also submitted that the Tribunal firstly failed to appreciate that the term "political opinion" is not limited to support for political parties. As a matter of law it relates to any aspect of society in which government may have an interest, including repression of criminal activities, and the bringing of criminals to justice. In Saliba v Minister for Immigration & Ethnic Affairs ("Saliba"), Sackville J said:

"In general, a broad view has been taken of the concept of `political opinion'. Guy Goodwin-Gill states that the expression

"should be understood in the broad sense to incorporate, within substantive limitations now developing generally in the field of human rights, any opinion or any matter in which the machinery of State, government and policy may be engaged".

The Refugee in International Law (2nd ed 1997)), at 49. This definition was cited with approval by the Supreme Court of Canada in Ward v Attorney-General of Canada [1993] 2 SCR 689, at 746.

In Ward, the Court also cited (at 746) the comment of A Grahl-Madsden, The Status of Refugees in International Law (1966), at 220, that the Convention applies where persons are persecuted on the ground

"that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party."

La Forest J (who delivered the judgment of the Court) pointed out that this definition assumes that the persecution from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. La Forest J regarded this assumption as inaccurate, because the Convention applies where the State is not an accomplice to the persecution, but is simply unable to protect the claimant. Thus, the Convention could apply to a claimant seen as a threat by a group unrelated or even opposed to the government, if the threat arises by reason of the claimant's political viewpoint, perceived or real.

La Forest J added two refinements to this analysis. The first was as follows (at 746):

"[T]he political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant."

"The second refinement (at 747) was that the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true belief. The issue has to be considered from the perspective of the persecutor."

27. Counsel further submitted that in addition, political opinion and opposition to criminality or corruption are not mutually exclusive: V v Minister for Immigration & Multicultural Affairs ("V") at [19]; C & S v Minister for Immigration & Multicultural Affairs ("C & S"). It further submitted that all of the above appears to have been lost on the Tribunal. The applicant's alleged action of informing the authorities of the illegal activities of the Jafaar gang is consistent with his being opposed to the cultivation and distribution of illegal drugs, and to the people engaged in these activities. These are political opinions. Yet the Tribunal did not consider whether the Jafaar gang's intended retribution was a result of their perception that the applicant opposed them and their illegal activities. It was submitted that the Tribunal therefore misunderstood the law, failed to ask the correct questions and has committed jurisdictional error.

28. It was submitted that there are sufficient grounds to have the matter remitted for reconsideration. Counsel further submitted the Tribunal also erred in that it misstated the applicant's claim (Court Book p.116) ("CB") and that the applicant actually claimed that he could not obtain state protection because he was not pro Syrian (CB p.53). If accepted, this claim would establish that the applicant faced persecution as a result of protection being withheld for a Convention reason: Minister for Immigration & Multicultural Affairs v Khawar per Gleeson CJ at [13], McHugh and Gummow JJ at [27] and Kirby J at [33]-[34].

29. Counsel also submitted the Tribunal misconstrued the applicant's claim as one of being targeted because he is pro Syrian. It was submitted that that was a claim that was not made and consequently, the Tribunal failed to consider the claim that was made, and that too is jurisdictional error: Dranichnikov; Sellamuthu v Minister for Immigration & Multicultural Affairs; Htun v Minister for Immigration & Multicultural Affairs at [42].

30. Ms K Morgan of Counsel appearing for the respondent filed written submissions. It was submitted that in respect of failing to ask the correct question the application purports to characterise the "correct decision" as determining whether the applicant could be imputed with a political opinion. The applicant, in each submission made to the Department and the Tribunal, clearly relied on his involvement in the "drug bust" as the basis for his fear. It was submitted that there was no evidence before the Tribunal, and the Tribunal rejected the suggestion, that the Jafaar family and/or Hezbollah held the view that the applicant had revealed the drug plantation because of a political opinion (CB p.116 [4]).

31. Counsel for the respondent submitted that the applicant's submissions assert his opposition to cultivation and distribution of illegal drugs is a political opinion (para. 27 above). Whether that is correct or not, it was submitted, is irrelevant to the current matter. The highest the applicant puts his submissions is that the applicant's "alleged action of informing the authorities ... is consistent with his being opposed to the cultivation and distribution of illegal drugs" (para 27 above). This is because the applicant's own submission in his application reveals that the reason he provided the detail in relation to the drug plantation was because of private negotiation with Sheik Mahmoud Deyayani (CB p.18).

32. It was submitted that the Tribunal asked itself the correct question: whether the applicant had a well-founded fear of persecution for a Convention reason. It concluded that the fear of persecution that the applicant held was not because of his political views or opinions, but fear that his persecutors would exact "some form of retribution from him" (CB p.116 [2]) as "they believe he is responsible for exposing their criminal activities" (CB p.116 [1]).

33. It was further submitted that the Tribunal concluded that the reason for the fear of persecution was revenge for the belief that the applicant exposed the persecutors' criminal activities; rejecting the proposition that the "applicant's political views or opinions are of any interest to his persecutors". Counsel submitted that the only consideration the Tribunal gave to a "political party" was in a descriptive sense in relation to Hezbollah and not in deciding whether the applicant held a political view by determining whether or not he was a member of a political party.

34. Counsel submitted that the Tribunal concluded that the applicant did not fear persecution for a Convention reason and that the Tribunal's reference to pro Syrian beliefs (CB p.116 [9]) was part of its evaluation of the applicant's fear of persecution. Earlier in the Tribunal's decision it had described the applicant's claims in relation to the authorities accurately:

"The applicant claims that the Lebanese government is pro-Syrian and that if you are not pro-Syrian then you will be denied any kind of help." (CB p.114 [9])

35. Counsel further submitted that the applicant's submissions are not accurate: the Tribunal did not misstate the applicant's claims nor fail to consider the applicant's claims.

Conclusion

36. Specifically, the applicant says that in regard to the first ground, the respondent misconstrued the meaning of the term "political opinion". The applicant was engaged as a contractor to construct pipes to bring water from the Mounay Lake in Lebanon to villages in the Beqaa Valley. The applicant had to bring this line to an area which was the domain of a clan or family called the Jafaar. He had previously negotiated with the Hezbollah which is a militant Islamic group in Lebanon for safety. Hezbollah negotiated with the Jafaar clan for his safe passage and the safety of his work mates in that particular area on the condition that he revealed to them what he saw about the Jafaar family's drug plantation and their supply depots. Just before the applicant completed the project, the army raided the Jafaar lucrative business and arrested some members of the clan and apparently killed others. The Jafaar family blamed the applicant.

37. Counsel for the applicant submits that the question the Tribunal had to answer was whether there was any Convention nexus to that ground once they had accepted the factual claims.

38. Counsel for the applicant directs me to CB p.116 which is part of the Tribunal's findings and reasons where it states:

"Having considered the facts of this case the Tribunal is of the view that the reason the applicant could be harmed by either Hossein Hammieh or members of the Jafaar family is revenge for the belief that the applicant exposed the criminal drug activities to the authorities leading to the arrest and death of some members of the Jafaar family/gang and the loss of the drugs.

Fear of revenge does not come within the range of the Refugee Convention unless it can be shown that revenge or retaliation is linked with race, religion or political opinion or other Convention reasons."

39. The submission is that these statements are a legally inadequate response to the applicant's claims. Then Counsel advanced several propositions with the support of case law. In the decision of V per Wilcox J at [18]:

"I reject the submission that an attitude of resistance to systemic corruption of, and criminality by, government officers cannot fall into the description `political opinion'. Whether particular resistance amounts to an attitude having a political dimension, or whether it is simply a product of other causes such as fear of detention, is, of course, a question of fact for determination in the particular case."

40. The second proposition advanced by the applicant's Counsel is that the political opinion need not necessary be contrary to that of the government. Support for that proposition is found in Ward v Attorney General of Canada ("Ward"). Ward was a member of the Irish National Liberation Army who was ordered to guard some prisoners who were to be executed. Ward let these people go and then decided that his own life may be in danger if he stayed, so he left the country and went to Canada. He was court martialled in absentia by the Irish National Liberation Army. When he sought refugee status in Canada for reason of his political opinion he appeared before the Supreme Court of Canada. At page 39 of the decision, the Court said:

"Ward's fear of being killed by the INLA, should he return to Northern Ireland, stems initially from the group's threat of executing the death sentence imposed by its court-martial. The act for which Ward was so punished was his assistance in the escape of the hostages he was guarding. For this act, a political opinion related to the proper limits to means used for the achievement of political change can be imputed. Ward had many reasons to go through with the assassination order and only one, that of acting in conformity with his beliefs, for doing what he actually did.

Ward was found to be a refugee for opposition to a group which was actually opposed to the government."

41. Similarly, in the case C & S Counsel for the applicant submitted that Wilcox J at 374-5 affirmed the case of Ward and formed the view that "The proposition upon which this case hinges is that fighting for justice can be a political opinion."

42. Mr Karp submitted that the Tribunal found that the fear held by the applicant was for retribution because he had allegedly reported the Jafaar family to the army (CB pp.116-117). There is a distinction between revenge in circumstances where the act of revenge has no political connotation and one which has a political dimension. That is a question that has been addressed in all cases; whether the act complained of by the persecutor has a political dimension. Here the Tribunal simply did not ask the question. The fact the question has to be asked can be found in the reasons of the Court in Saliba, Ward and C & S. What the Tribunal left unsaid was, "What did the person perceive about the applicant?" and "Why did he reveal their activities to the authorities?" It is submitted there is no linkage in this case, as in Saliba and C & S, that the Tribunal considered that this could possibly have been a politically significant act. It is submitted that the Tribunal misconstrued the meaning of the term "political opinion", construing political opinion as being a much narrower concept in this case.

43. In response, Ms Morgan for the respondent, referred me to the Tribunal's decision at CB p.111. The Tribunal there outlined four elements of the Convention definition for an applicant to qualify as a person to whom Australia has protection obligations. It was submitted by Ms Morgan that several of the propositions put forward by Mr Karp were clearly accepted by the Tribunal:

"The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be a product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution."

It is submitted that this proposition is supported by Khawar; V; C & S and to a certain extent, the Canadian decision of Ward.

44. The Tribunal also stated:

"Further, persecution implies an element of motivation on the part of those persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors."

It was submitted that it is quite clear that the Tribunal was well aware of the concept of imputed political opinion or an imputed belief that could be held by the applicant. The idea, for example, that an opposition to corruption or criminality in relation to the government may well be a political opinion if it is found factually.

45. Ms Morgan submitted that what his Honour Wilcox J was referring to in V at [18] was reference to complaining about corruption or criminality within the government. Ms Morgan stated that although she understood that Mr Karp did concede he was not saying that this case was in fact corruption or criminality within the government, he did express concern that there may be a conflation with the idea of criminality and reporting crimes to police or being perceived to report crimes to the police which, by definition, is political opinion. It was submitted that there was no authority to support that proposition: V per Whitlam J at [40]:

"Even in cases of official corruption, merely reporting crimes to the authorities would not normally suggest a `political opinion', nor would the exchanging of tales of woe or plotting of revenge by victims of the same type of crime."

46. I was referred to the section of the Tribunal's decision which is set out above at paragraphs 16 and 17. Those paragraphs are a summary of the principal findings of the Tribunal and that finding is that the essential and significant reasons for persecution is revenge for belief that the applicant exposed the criminal activities, and it was based on a finding earlier in that paragraph. It was submitted that it is clear from the applicant's own evidence that they are concerned with extracting some form of retribution from him for this reason and not for any other reason. That was a finding of the Tribunal.

47. It was submitted that the correct question was, "Was the harm suffered by the applicant for a Convention reason?" The Tribunal found that it was not. It was submitted that the applicant's submission was that the Tribunal failed to accurately articulate what a political opinion could be and that it could be imputed by a persecutor.

48. It was the respondent's contention that there was no indication that the Tribunal misunderstood the idea that one could impute a political opinion or that you are required to be a member of a political party or have some manifestation of politics per se before one could be said to have a political opinion for which one could be persecuted. In support of that contention I was referred to the decision of NAAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs where the Full Court affirmed the decision of Sackville J in Minister for Immigration & Multicultural & Indigenous Affairs v Rajalingam at 240-241 Conti J, with whom the remaining members of the bench agreed, stated at [32]:

"I do not think that the Tribunal member is obliged, in the circumstances which confronted her, to undertake additional or further enquiry of the appellant to that which she in fact undertook. In the light of the testimony which the appellant had already advanced to the Tribunal, it would have been somewhat tautological for the Tribunal to have asked the appellant, by the time of the conclusion of the testimony which she had actually given, the suggested question to the effect "What was said by these men when they threatened you?" What the applicant's submission in this regard requires is an unjustifiable extension of the principles enunciated in Rajalingam, Saliba and Paramananthan, to which reference was rightly made by the primary judge, with approval."

49. I agree with the respondent's submissions that it was quite clear from the Tribunal's decision that persecution feared by the applicant was not for a political reason but for revenge arising from a belief that the applicant exposed the Jafaar family's criminal drug activities to the authorities. I agree with the Tribunal's finding that the applicant's fear has no connection with any of the Convention reasons.

50. The findings of the Tribunal are reasonably open to it on the material before it. I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision. In the circumstances, I dismiss the application.

51. I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.